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{{reflist|refs=
{{reflist|refs=


<ref name="The complete guide to divorce law4">{{cite book|last=Choudhri|first=Nikara K.|title=The complete guide to divorce law|year=2004|publisher=Citadel Press|location=New York|isbn=0806525282|pages=7}}</ref>
<ref name="The complete guide to divorce law4">{{cite book|last=Choudhri|first=Nikara K.|title=The complete guide to divorce law|url=http://books.google.com/books?id=5cLIO2yUA4gC&pg=PA7|year=2004|publisher=Citadel Press|location=New York|isbn=0806525282|pages=7}}</ref>


<ref name="NelsonHenderson1895 3">{{cite book|last1=Nelson|first1=|last2=Henderson|first2=|title=A treatise on the law of divorce and annulment of marriage|url=http://books.google.com/books?id=vgs9AAAAIAAJ&pg=PA469|accessdate=9 October 2011|volume=1|year=1895|publisher=Callaghan|pages=87–91}}</ref>
<ref name="NelsonHenderson1895 3">{{cite book|last1=Nelson|first1=|last2=Henderson|first2=|title=A treatise on the law of divorce and annulment of marriage|url=http://books.google.com/books?id=vgs9AAAAIAAJ&pg=PA469|accessdate=9 October 2011|volume=1|year=1895|publisher=Callaghan|pages=87–91}}</ref>

Revision as of 00:10, 26 October 2011

Main article: Grounds for divorce
This article is about the legal aspect. For the song by Elbow, see Grounds for Divorce (song).

Grounds for divorce are regulations in each state of the United States that specify under what circumstances one party can be granted a divorce. In some jurisdictions, the couple must live apart for several months before being granted a divorce.

There are certain types of divorce that differ by how divorce is legally defined, and others that deal with the dissemination of funds.

No fault divorce

Main article: No-fault divorce

No-fault divorce is currently represented in every state within the United States.[1] When the marriage partners mutually consent that they no longer feel the marriage is worth continuing, a no-fault divorce will allow the couple to obtain a divorce easily. [1] (your state might not use irretrievably).[1] In order to obtain a no-fault divorce in some states, the parties will mutually consent to provide information regarding incompatibility or why the marriage partners have changed, grown apart, or have irreconcilable differences. [1] (In this case, make sure the same language being used is correct for the state you are filing for the no-fault).[1] Additionally, in some states, the person's spouse may need to provide similar information in the divorce proceedings.[1] If a state requires a separation period, that person may be required to bring a witness to testify that the parties have been living apart for the required amount of time.[1]

Separation

Marriage partners that are living apart have grounds for no-fault divorce.[2] Statutes require the parties must live apart for a certain period of time. [2] Time required for the separation would be a consideration of the state where the couple lives. [2] The time limitation placed on the spouses is to force the parties to think about their future permanent separation as a serious step or if a reconciliation is possible. [2]

Irretrievable breakdown

In the United States, there are several states that will allow spouses to divorce if they are no longer are willing to live with one another. [3] However, there are some states that use different terminologies -- for example "irreconcilable differences" or "incompatible of temperament" which is a representation for grounds for divorce.[3] Regardless of the dialect used, all states fundamentally allow a party to divorce if the marriage breaks down and it is understood by the couple that there will be no reconciliation.[3] In order to attain a divorce on grounds of irretrievable marriage breakdown, the requirement for the couple is to state under oath that a marriage is irreparably broken.[3] An alternative to an under oath statement is to agree in writing that a marriage is broken beyond repair.[3]

State acceptance

Every state within the United States participates in some form of "no-fault" divorce.[4] If the decision by a married couple is made that a no-fault divorce is best, no proof for the divorce is required because they both mutually consent to the divorce. Additionally, a no-fault divorce provides less strain on a couple that has children.[4] In the no-fault, one member from the party acknowledges that the marriage is beyond repair.[4] A no-fault divorce is rather conventional vs a fault divorce because it is conditional.[4] Another reason for choosing a no-fault divorce over a fault divorce is that it is quick and easy as well as less expensive.[4]

Shift of acceptance

In the early 70's, California was the first state to segue toward no-fault divorce.[5] During the next 15 years, the no-fault reform took the lead as other states soon decided to follow. The legal system in California chose to terminate all fault grounds for divorce and utilized single no-fault standards making divorce easier and less costly.[5] Upon California's lead, a compelling amount of states decided to only have no-fault grounds; however, some states decided to keep their existing fault grounds with a new option of no-fault. [5]

Some marriages do not last for a very long time and early on, spouses begin to evaluate their marital situation.[6] During the early part of a marriage, one may begin to evaluate the marriage and if it would be reasonable to continue with a long term commitment to the other party.[6] During this evaluation period, one should consider no-fault divorce as a possible grounds.[6] As time passes, one spouse in a marriage makes more long-term sacrifices in order to be committed. These sacrifices could include career choices, children, and social life. As one makes more commitment, it becomes more difficult to divorce. Earlier in the marriage, the sacrifices are smaller and a decision for divorce is easier based on mutual consent.[6] Sacrifice can be the cost of change and provides the parties grounds for divorce.[6]

Pros and cons

Multiple surveys have been given to the American people to collect their thoughts on no-fault divorce.[7] Through the surveys it was revealed that 50% of Americans are disappointed with the no-fault divorce and would like to have alterations made to the system making no-fault more difficult for couples who want to divorce.[7]According to economist Robert Rowthorn, no-fault divorce can enable couples the ability to lack the commitment toward marriage.[7] The principal of this argument is that marriage can be compared to a business partnership. In a business partnership, the foundation is a long term commitment to success as well as trust. A marriage should be considered in a similar manner with trust and committment at the foundation empowering the couple to have the confidence in a long lasting relationship.[7] Wardle argues after multiple surveys that the overall American opinion is that couples who have families can divorce easily.[7] At the turn of the millennium, Wardle states that some type of reform will be accepted in many states which should occur within the next decade.[7]

Ira Ellman has focused on and criticized four principal arguments of no-fault vs fault-based divorce.[7] The arguments consist of: 1) No-fault divorce increases the amount of divorces. Currently, there are no statistics that support this information.[7] 2) Marital misconduct is affected negatively when one spouse files against the other because of wrong doing in the marriage.[7]Fault based divorce which can be defined where considerations are based on issues such as adultry, mental or physical abuse, drug or alcohol abuse, as well as direction.[7] 3) Dividing up the couples property such as the house, pertinent valuables, and alimony have become unfair through a no-fault divorce.[7] 4) A no-fault divorce has made a negative impact towards one's society leaving a negative impact on one's thinking about marriage and families.[7] Ellman feels that these arguments are not exact.[7]

Fault divorce

A fault divorce is a divorce granted on the grounds that one party in the divorce is considered to be at fault of specific wrong doings.[4] The party filling for the divorce must prove that the other party has done something to justify ending the union.[4] Different states have different requirements for obtaining a fault divorce but in each state the spouse filing for the divorce is required to establish a reason for the divorce and provide evidence of the other parties’ guilt.[4] The specific grounds for receiving a fault divorce include adultery, impotency, infertility or homosexuality of the other party that was not discussed before the union; criminal conviction of a felony or imprisonment of one party for a certain length of time; abandonment or desertion, cruelty, or mental instability of one of the parties.[4]

Divorce courts require proof be given that the grounds actually exist; this can be accomplished by providing testimony from a hired detective with documentation of the spouse’s bad behavior or from someone who witnessed or has first-hand knowledge of the spouse’s bad behavior.[4] There are defenses a spouse can use to convince the court that he or she is not at fault in order to have the grounds dismissed and possibly prevent a fault divorce.[4] These defenses include collusion, condonation, connivance, and provocation.[4]

Fault divorces are becoming less common today because almost every state now recognizes no-fault divorces.[4] No-fault divorces are less expensive, easier to obtain, and less stressful on the spouses and their children because they do not require one to prove fault.[4] However, fault divorces are advantageous if a quick divorce is desirable; this type of divorce is granted quickly without the waiting period of no-fault divorces where parties are ordered to live apart for a specific amount of time before the divorce is finalized.[4] Another benefit of a fault divorce is the monetary gain; proof of the accused party’s wrongdoing may result in the court granting the filing spouse a larger portion of the marital property or increased support and alimony.[4] However, fault divorces are considerably more expensive to obtain than no-fault divorces. [4]

The most common fault grounds include the following:

Adultery

Sexual activities with a person of the opposite sex as well as the same sex involving oral sex and other sexual behavior not necessarily including intercourse constitute adultery.[8] To obtain a divorce on grounds of adultery the accusing party must present proof that their spouse voluntarily engaged in sexual relations with someone else.[8] Circumstantial as well as documented evidence including videotapes of the spouse committing the sexual infidelity can be used as proof of adultery.[8] The accusing partner must prove that the other partner had the opportunity and inclination to commit adultery.[9]

Cruelty

Proof of cruelty or the repeated infliction of serious physical or mental suffering by one marital partner on the other is also grounds for divorce.[8] To obtain a divorce on the grounds of cruelty the filing spouse must prove that the cruelty has made marriage intolerable for them.[8] The cruelty must have been deliberate and calculated and must not have been provoked by the filing spouse.[8] Acts such as physical attacks, repeated displays of rage involving screaming and violent behavior, as well as continuous false accusations adultery and publicly berating and insulting a spouse or flaunting an affair with another person are some grounds of cruelty.[8] The cruelty must have been recurrent; single acts of cruelty in a marriage are usually not considered grounds for divorce.[8]

Abandonment or desertion

Leaving the household with the consent of the filing spouse or for reasons not related to the marriage like completing military service or employment assignments does not constitute abandonment or desertion.[10] Refusing to have sexual relations with a spouse can also be considered abandonment in some incidences.[10] To obtain a divorce on grounds of abandonment the accused spouse must have voluntarily deserted the marital household with no justification or intention to return.[11] The deserter must have left without the consent of the filing party and remained absent for an uninterrupted period of time.[11] However, a spouse who is unjustly forced from the marital household by the other spouse or leaves to escape domestic violence would not be at fault of abandonment or desertion.[10] In fact in these cases the spouse who remains at the home may be charged with abandonment if their behavior justifies the charge or if that spouse refuses a sincere offer of reconciliation.[10]

Mental illness

Permanent mental illness and incurable insanity is a ground for divorce.[10] To obtain a divorce on grounds of mental illness the filing spouse must have proof that the other spouse suffers from a permanent psychological disorder which makes marriage impossible.[10] The disorder must be incurable and the spouse must have been diagnosed by doctors competent in psychiatry.[10]

Criminal conviction

The criminal conviction and imprisonment of a spouse is often considered grounds for a divorce.[10] To obtain a divorce on grounds of criminal conviction the filing spouse must be able to prove that their spouse has been convicted of an illegal offense.[10] In many cases it is required that the convicted spouse has been sentenced to serve time in prison in order for a divorce to be granted on the grounds of criminal conviction.[10]

Other grounds for divorce may include; alcohol or substance abuse and impotency, infertility or homosexuality of the other party that was not discussed before the union.[12]

Other grounds

Research has shown that sexual compatibility is strongest in relationships whose partners are about ten years apart.[13] Given that the average age difference between the members of most couples is smaller than this (by about two to five years), it is no wonder that impotency is a concern for many.[13] Once the hitched pair reaches their third decade, their sex drives tend to desynchronize.[13] Other sexual incompatibilities, such as difference in preferences, worsen the issue.[13] Based upon this consistency problem, couples are able to file for divorce.[13]

Marrying someone of a different religion, ethnicity, or vastly different culture could also pave the way for divorce.[12] One partner may find himself/herself unable to handle the societal pressures of the arrangement, or may feel pressured to conform to the spouse’s/other culture’s ideals (e.g. child rearing, dietary changes, etc.), which could lead to resentment.[12] In New Hampshire, one unusual ground for divorce is an option for someone whose other half has joined a religious sect that destroys the marriage.[12]

Defenses

The accused was not at fault

In some cases a spouse can prevent a fault divorce by convincing the court that he or she is not at fault.[12] Defenses commonly used to prevent a fault divorce are:

Condonation is used as a defense when the accusing spouse claims that the filing spouse has actually forgiven or accepted the wrongful behavior of their spouse prior to filing the charges and has in fact continued to have relations with them.[14]

Reconciliation, like condonation, is used by the accused spouse to prevent a fault divorce when they can prove that the filing spouse has forgiven them and reconciliation has occurred.[15]

Recrimination is when the spouse who is being accused of wrongdoing attempts to stop the divorce process by claiming that the other spouse is guilty of bad behavior themselves.[16]

Provocation is used when the spouse accused of abandoning the marriage defends the suit on the ground that the filing spouse provoked the abandonment.[17]

Possible reconciliation

In a fault divorce a reconciliation defence can not be acquired in the event of a forgiveness by one spouse.[13] As an example, abandonment; the divorce can't be based on that issue if one or both spouses reconcile after the abandonment they would have to find another ground for divorce. [13]

References

  1. ^ a b c d e f g Haman, Edward A. (2001). How to file your own divorce : with forms (4th ed.). Naperville, IL: Sphinx Pub. p. 31. ISBN 1-57248-132-3.
  2. ^ a b c d Statsky, William P. (2004). Family law : the essentials (2nd ed.). Clifton Park, NY: Thomas/Delmar Learning. p. 89. ISBN 1401848273.
  3. ^ a b c d e Choudhri, Nikara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 7. ISBN 0806525282.
  4. ^ a b c d e f g h i j k l m n o p q Ventura, John (2009). Divorce for dummies (3rd ed.). Hoboken, NJ: Wiley Pub. p. 16. ISBN 978-0-470-41151-3. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  5. ^ a b c Ehrlich, J. Shoshanna (2008). Family law for paralegals (4th ed.). New York, NY: Aspen Publishers/Wolters Kluwer. p. 163. ISBN 0735563829.
  6. ^ a b c d e Parkman, Allen M. (2000). Good intentions gone awry : no-fault divorce and the American family. Lanham, Md.: Rowman & Littlefield. p. 190. ISBN 0847698696.
  7. ^ a b c d e f g h i j k l m Cruz, Peter de (2010). Family law, sex and society : a comparative study of family law. London: Routledge. p. 88. ISBN 0415484308.
  8. ^ a b c d e f g h Choudhri, Nihara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 8. ISBN 0806525282.
  9. ^ Statsky, William P. (2008). Family law (5th ed.). Australia: Delmar Cengage Learning. p. 187. ISBN 0766833585.
  10. ^ a b c d e f g h i j Choudhri, Nihara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 9. ISBN 0806525282.
  11. ^ a b Statsky, William P. (2008). Family law (5th ed.). Australia: Delmar Cengage Learning. p. 188. ISBN 0766833585.
  12. ^ a b c d e Choudrhi, Nihara K. (2004). The Complete Guide to Divorce Law (1st ed.). New York, NY: Kensington Publishing Corp. p. 10. ISBN 0806525282.
  13. ^ a b c d e f g Choudhri, Nihara K. (2004). The complete guide to divorce law. New York: Citadel Press. p. 11. ISBN 0806525282.
  14. ^ Nelson; Henderson (1895). A treatise on the law of divorce and annulment of marriage. Vol. 1. Callaghan. pp. 444–468. Retrieved 9 October 2011.
  15. ^ Nelson; Henderson (1895). A treatise on the law of divorce and annulment of marriage. Vol. 1. Callaghan. p. 500. Retrieved 9 October 2011.
  16. ^ Nelson; Henderson (1895). A treatise on the law of divorce and annulment of marriage. Vol. 1. Callaghan. pp. 420–443. Retrieved 9 October 2011.
  17. ^ Nelson; Henderson (1895). A treatise on the law of divorce and annulment of marriage. Vol. 1. Callaghan. pp. 87–91. Retrieved 9 October 2011.
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